The Right to Refuse Service: Can a Business Refuse Service to Someone? by Jane Haskins, Esq.

The Right to Refuse Service: Can a Business Refuse Service to Someone?

Religious freedom laws have complicated the issue surrounding discrimination and when a business can legally refuse service.

by Jane Haskins, Esq.
updated September 03, 2020 · 4 min read

Woman blocking her face with her hand

You’ve probably seen these signs at restaurants: “We reserve the right to refuse service to anyone.” Or, “No shirt, no shoes, no service.”

But what do these signs really mean? Can a business just refuse service to someone? Can they throw you out if you forgot your flip-flops on the beach? When is a refusal to serve someone justified and when is it discrimination that could lead to a lawsuit?

The issue made big headlines recently, when the state of Indiana passed its Religious Freedom Restoration Act. Gay rights activists immediately protested that the law was just a way to legalize discrimination against gays: any business owner could now refuse to serve them simply by citing a religious objection.

The law caused such a firestorm that the legislature hastily enacted an amendment clarifying that the law could not be used to discriminate on the basis of sexual preference. But with other states also considering religious freedom laws, the issue isn’t likely to go away anytime soon.

What Do the Anti-Discrimination Laws Say?

At the heart of the debate is a system of anti-discrimination laws enacted by federal, state and local governments. The entire United States is covered by the Federal Civil Rights Act of 1964, which prohibits discrimination by privately owned places of public accommodation on the basis of race, color, religion or national origin. Places of “public accommodation” include hotels, restaurants, theaters, banks, health clubs and stores. Nonprofit organizations such as churches are generally exempt from the law.

The right of public accommodation is also guaranteed to disabled citizens under the Americans with Disabilities Act, which prohibits discrimination by private businesses based on disability.

The federal law does not prohibit discrimination based on sexual orientation, so gays are not a protected group under the federal law. However, about 20 states, including New York and California, have enacted laws that prohibit discrimination in public accommodations based on sexual orientation.

In California, you also can’t discriminate based on someone’s unconventional dress. In some states, like Arizona, there’s no state law banning discrimination against gays, but there are local laws in some cities that prohibit sexual orientation discrimination.

So, no matter where you live, you cannot deny service to someone because of his or her race, color, religion, national origin or disability. In some states and cities, you also cannot discriminate against people because of their sexual orientation. If there is no state, federal or local law prohibiting discrimination in public accommodations against a particular group of people, then you can legally refuse to serve that group of people.

What Does It Mean to Discriminate Against Someone?

If there’s an anti-discrimination law, does that mean that a business can never refuse service to a member of a group that is protected from discrimination?

The answer is that you can refuse to serve someone even if they’re in a protected group, but the refusal can’t be arbitrary and you can’t apply it to just one group of people.

To avoid being arbitrary, there must be a reason for refusing service and you must be consistent. There could be a dress code to maintain a sense of decorum, or fire code restrictions on how many people can be in your place of business at one time, or a policy related to the health and safety of your customers and employees. But you can’t just randomly refuse service to someone because you don’t like the way they look or dress.

Second, you must apply your policy to everyone. For example, you can’t turn away a black person who’s not wearing a tie and then let in a tieless white man. You also can’t have a policy that sounds like it applies to everyone but really just excludes one particular group of people. So, for example, a policy against wearing headscarves in a restaurant would probably be discriminatory against Muslims.

A couple of recent court cases illustrate the fine line between discrimination and a justifiable refusal of service. In each case, a Colorado baker was sued for violating discrimination laws.

In the first case, the baker refused service to a customer who wanted her to bake a cake with anti-gay Bible verses on it. The customer argued that he was discriminated against because of his religious beliefs. But the court ruled that this was not discrimination because the baker had a consistent policy of refusing to create cakes that used derogatory language or imagery.

In the second case, a baker refused to create a wedding cake for a same-sex couple, saying that it violated his religious beliefs. The court held the baker liable, saying that his reason was just a pretext for discriminating against gays.

Which brings us back to the original restaurant signs. “We reserve the right to refuse service to anyone” sounds vague and arbitrary. As we’ve seen, a business can’t just randomly refuse to serve someone.

“No shirt, no shoes, no service” on the other hand, is a clear dress code that could also relate to health and safety issues. You usually see the sign in beach towns where tourists of all kinds are apt to be walking around shirtless or shoeless. As long as the policy is applied to everyone equally, it’s not likely to violate any discrimination laws.

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Jane Haskins, Esq.

About the Author

Jane Haskins, Esq.

Jane Haskins is a freelance writer who practiced law for 20 years. Jane has litigated a wide variety of business dispute… Read more